Bombay High Court
Ravindra Singh Bhati vs Union Of India Through Ministry Of Law & on 14 July, 2009
Author: P.B. Majmudar
Bench: P.B. Majmudar, R.M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO. 990 OF 2009
1. Ravindra Singh Bhati, age 43, )
Appraising Officer, Flat No. 904, Godavari, )
Customs Colony, Powai, Mumbai, presently posted )
Appraising Officer, New Custom House,Ballard Estate, )
Mumbai )
2. Ramesh S. Sawant, age 59, )
Dy. Commissioner, 310, Darshana Apartments, )
90 feet Road, Sane Guruji Nagar, Mulund (East),
ig )
Mumbai-400 181 )
presently posted as Dy. Commissioner, Central Excise, )
Kalyan Division III, Dyneshwar Prasad Building, )
1st floor, Murbad Road, Kalyan (West)-421 301 )
3. I. Vikraman, Age 57, Asstt. Director, )
604, Monical, Andheri Kurla Road, Andheri (East) )
Mumbai-400 069, presently posted Asstt. Director, )
Directorate of Enforcement, Mumbai Zonal Office, )
2nd floor, Mittal Chamber, Nariman Point, )
Mumbai-400 023. )
4. Anil Choudhry (SC), age 42, Appraising Officer, )
Flat No. B-806, Aster Building, Dosti Acres, )
Wadala (East), Mumbai, presently posted )
Appraising Officer Group-II-B, Appraising Group, 1st floor )
Old Building, New Custom House, Ballard Estate, )
Mumbai. )
5. Vinay Kumar Arya, age 40, Appraising Officer, )
Flat No. A-401, Karan Versova, Andheri (West), )
Mumbai-400 061, presently posted Appraising Officer, )
Post Clearance Audit, New Custom House, Ballard )
Estate, Mumbai. )
6. Hemant Kumar Tantia, Appraiser, )
J-103, Maheshwari Nagar, Kondivita, MIDC, )
Andheri (East), Mumbai-400 093 )..Petitioners
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versus
1. Union of India through Ministry of Law & )
Justice, Aaykar Bhavan, New Marine Line, )
Mumbai-400 020 )
2. Revenue Secretary, Department of Revenue, )
Ministry of Finance, Central Board of Excise and Customs, )
North Block, New Delhi-110 001 )
3. The Chairman, Central Board of Excise and Customs, )
Ministry of Finance, Department of Revenue, North )
Block, New Delhi-110 001 )
4. The Commissioner of Customs (General), New Customs )
5.
House, Ballard Estate, Mumbai-400 001
M.N. Dhar, presently posted as Additional Commissioner
)
)
of Customs, Sahar, Mumbai. )
6. A. J. Verma, Deputy Commissioner of Customs, )
Jawahar Nehru Custom House, Nhava Sheva, )
Raigad-400 707 )
7. A.K. Singh, Asstt. Director, Enforcement Directorate, )
Nariman Point, Mumbai-400 021 )
8. Mohammed Altaf, Appraiser,New Custom House, )
Ballard Estate, Mumbai )
9. Dr. Sudesh Sheoran, Appraiser, New Custom House, )
Ballard Estate, Mumbai. )
10. H.C. Verma, Appraiser, New Custom House, )
Ballard Estate, Mumbai. )
11. All India Customs Officers (Direct Recruit Appraisers) )
Association. ).Respondents
Mr. Shreehari Aney, Senior Advocate, instructed by Mr. R.G. Walia, for the
petitioners.
Mr. M.I. Sethna with Mr. J. B. Mishra for respondent Nos. 1 to 4.
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Mr. Mahesh Jethmalani, Senior Advocate, instructed by Mr. Sandeep V. Marne,
for respondent Nos. 8 and 9.
Mr. C.U. Singh, Senior Advocate, instructed by Mr. Sandeep V. Marne, for
respondent No. 11.
None for respondent Nos. 5, 6, 7 and 10.
WITH
WRIT PETITION (LODGING) NO. 1006 OF 2009
The Bombay Customs Appraising Officer's Association )
New Custom House, Bombay-400 038 through its Joint )
Secretary Shri Ajay Arya, Working as Appraiser, )
versus
New Custom House, Ballard Estate, Mumbai-400 038 )..Petitioner
1. M.N. Dhar, presently posted as Additional Commissioner )
of Customs, Sahar, Mumbai. )
2. A. J. Verma, Deputy Commissioner of Customs, )
Jawahar Nehru Custom House, Nhava Sheva, )
Raigad-400 707 )
3. A.K. Singh, Asstt. Director, Enforcement Directorate, )
Nariman Point, Mumbai-400 021 )
4. Mohammed Altaf, Appraiser,New Custom House, )
Ballard Estate, Mumbai )
5. Dr. Sudesh Sheoran, Appraiser, New Custom House, )
Ballard Estate, Mumbai. )
6. H.C. Verma, Appraiser, New Custom House, )
Ballard Estate, Mumbai. )
7. All India Customs Officers (Direct Recruit Appraisers) )
Association. )
New Custom House, Ballard Estate, )
Mumbai-400 038 )
8. Union of India through Ministry of Law & )
Justice, Aaykar Bhavan, New Marine Line, )
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Mumbai-400 020 )
9. Revenue Secretary, Department of Revenue, )
Ministry of Finance, Central Board of Excise and Customs, )
North Block, New Delhi-110 001 )
10. The Chairman, Central Board of Excise and Customs, )
Ministry of Finance, Department of Revenue, North )
Block, New Delhi-110 001 )
11. The Commissioner of Customs (General), New Customs )
House, Ballard Estate, Mumbai-400 001 ).Respondents
Mr. J.P. Cama, Senior Advocate, instructed by Mr. R.G. Walia, for the petitioner.
Mr. Mahesh Jethmalani, Senior Advocate, instructed by Mr. Sandeep V. Marne,
for respondent Nos. 4 and 5.
Mr. M.I. Sethna with Mr. J. B. Mishra for respondent Nos. 8 to 11.
Mr. C.U. Singh, Senior Advocate, instructed by Mr. Sandeep V. Marne, for
respondent No. 7.
None for respondent Nos. 1 to 3 and 6.
WITH
WRIT PETITION (LODGING) NO. 1133 OF 2009
1. Union of India, through the Ministry of Finance )
Department of Revenue, Central Board of Excise and )
Customs, having its office at North Block, )
New Delhi-110 001 )
2. The Chairman, Central Board of excise and Customs, )
Ministry of Finance, Department of Revenue, North Block, )
New Delhi-110 001 )
3. The Commissioner of Customs (General) )
New Custom House, Ballard Estate, Mumbai-400 001 ).Petitioners
versus
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1. M.N. Dhar, presently posted as Additional Commissioner )
of Customs, Sahar, Mumbai. )
2. A. J. Verma, Deputy Commissioner of Customs, )
Jawahar Nehru Custom House, Nhava Sheva, )
Raigad-400 707 )
3. A.K. Singh, Asstt. Director, Enforcement Directorate, )
Nariman Point, Mumbai-400 021 )
4. Mohammed Altaf, Appraiser,New Custom House, )
Ballard Estate, Mumbai )
5. Dr. Sudesh Sheoran, Appraiser, New Custom House, )
Ballard Estate, Mumbai. )
6.
H.C. Verma, Appraiser, New Custom House,
Ballard Estate, Mumbai.
)
)
7. Sanjay Vasant Parelkar )
Age 58, Deputy Commissioner, 201, Omkar Customs )
Co-op. Hsg. Soc, Plot No. 5, Part 161-A, Juhu Versova )
Link Road, Andheri (West), Mumbai-400 053, )
presently posted Dy. Commissioner, Chief )
Commissioner's office, Central Excise Building, )
115, M.K. Road, Churchgate, Mumbai-400 020 )
8. Ramesh S. Sawant, age 59, )
Dy. Commissioner, 310, Darshana Apartments, )
90 feet Road,Sane Guruji Nagar, Mulund (East) )
Mumbai-400 081, presently posted Dy.Commissioner, )
Central Excise, Kalyan Division III, Dyneshwar Prasad )
Building, 1st floor, Murbad Road, Kalyan (West)-421 301 )
9. I. Vikraman, age 57, )
Asstt. Director, 604, Monical, Andheri (East), )
Mumbai-400 069 presently posted as Asstt. Director, )
Directorate of Enforcement, Mumbai Zonal Office, )
2nd floor, Mittal Chamber, Nariman Point, )
Mumbai-400 021. )
10. Ravindra Singh Bhati, Appraising Officer, )
CFS Mulund, Mulund, Mumbai. )
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11. Anil Choudhary (SC), Appraising Officer, )
1st floor, Old Building, New Custom House, )
Ballard Estate, Mumbai. )
12. Vinay Kumar Arya, Appraising Officer, )
Drawback Recovery Cell, Appraising Group, 1st floor, )
New Custom House, Ballard Estate, Mumbai. )
13. Hemant Kumar Tantia, Appraiser, )
J-103, Maheshwari Nagar, Kondivita, )
MIDC, Andheri (E), Mumbai-400 093 )
14. All India Customs Officers (Direct Recruit Appraisers) )
Association, New Custom House, Ballard Estate, through )
Its Hon. President Mr. Y.K. Sharma, Joint Director, )
15.
Risk Management Division, Mumbai.
Bombay Customs Appraising Officers Association,
)
)
3rd floor, Old Bldg., New Custom House, Ballard Estate, )
Mumbai. ).Respondents
Mr. M.I. Sethna with Mr. J. B. Mishra for the petitioners.
Mr. Mahesh Jethmalani, Senior Advocate, instructed by Mr. Sandeep V. Marne,
for respondent Nos. 4 and 5.
Mr. Shreehari Aney, Senior Advocate, instructed by Mr. R.G. Walia, for
respondent No. 10.
Mr. C.U. Singh, Senior Advocate, instructed by Mr. Sandeep V. Marne, for
respondent No. 14.
None for respondent Nos. 1 to 3, 6 to 9 and 11 to 13.
CORAM: P.B. MAJMUDAR &
R.M. SAVANT, JJ.
Judgment reserved on: 3
July, 2009
rd
Judgment pronounced on: 14 July, 2009
th
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JUDGMENT:(Per P.B. Majmudar, J.)
1. Since common point is involved in all these writ petitions, all these writ petitions are being disposed of by this common judgment. It is agreed by the learned counsel appearing for the parties that these matters can be disposed of finally at the admission stage itself. Hence Rule. Learned counsel appearing for respective respondents waive service of Rule.
2. The present petitions symbolise the unending fight regarding seniority between promotees and direct recruits. The bone of contention is the seniority in in the post of Appraiser.
3. The challenge in these writ petitions is to the order dated 1 st May, 2009, passed by the Central Administrative Tribunal, Mumbai Bench, Mumbai, in Original Application No. 360 of 2008.
4. The Original Application before the Central Administrative Tribunal, (hereinafter referred to as "the Tribunal") Mumbai, was preferred by six direct recruit Appraisers challenging the letter dated 3rd June, 2008, issued by the Department of Revenue, Ministry of Finance, by which it has been decided to re-
draw a fresh seniority list of Officers in the grade of Customs Appraisers.
According to the direct recruits, the attempt on the part of the Union of India to ::: Downloaded on - 09/06/2013 14:46:51 ::: -8- redraw a fresh seniority list is unjust, illegal and arbitrary. It is the case of the applicants that they were directly recruited as Appraisers and some of them as of date are promoted the post of Additional Commissioner. According to the applicants, the seniority list of the applicants and other service conditions are governed by the Recruitment Rules, 1961, as amended from time to time particularly by the Rules of 1988. As per the Rules, the quota for the percentage of posts to be filled by direct recruitment is specifically provided. In the case of promotees, it cannot be more than 50 per cent. On 12 th November, 1997 the respondents issued a seniority list which was against the quota rules . Challenge was made to the aforesaid seniority list by some of the direct recruits before the Mumbai Bench of the Tribunal by filing Original Application No. 855 of 1998. The Tribunal partly allowed the said application on 18th June, 2006 by quashing and setting aside the said seniority list. Against the order of the Tribunal, the promotees approached this Court by filing a writ petition. In the said writ petition no interim relief is granted. The said writ petition is as yet pending.
5. It is also the case of the applicants before the Tribunal that the draft seniority list dated 30th June, 2004 as well as a final seniority list dated 16th December, 2004 was challenged before the Madras Bench of the Tribunal. The Madras Bench of the Tribunal upheld the seniority list dated 16th December, 2004. The said order of the Tribunal was upheld by the Madras High Court and ::: Downloaded on - 09/06/2013 14:46:51 ::: -9- an appeal filed against the said order of the Madras High Court was dismissed by the Supreme Court. Thus the seniority list dated 16 th December, 2004 is concerned, the same has attained finality.
6. It is the case of the applicants that the final seniority list dated 16th December, 2004 and the draft list dated 28th April, 2005 of the Appraisers appointed on or after 1st January, 1988 was circulated. The said seniority lists were challenged before the Madras Bench of the Tribunal in Original Application Nos. 408, 419 and 566 of 2005. The order dated 9th August, 2005 passed by the Madras Bench of the Tribunal reads thus:
"For all the above reasons, the seniority list dated 16.12.
2004 cannot be questioned since it is made subject to the outcome of the Writ Petition No. 4855 of 2004 pending before the Mumbai High Court. So also the relief in O.A. No. 566 of 2005 cannot be granted since there is no bar to operate the draft seniority list in the facts and circumstances of the case. All these applications are accordingly dismissed. No order as to costs".
7. The aforesaid order of the Madras Bench of the Tribunal was challenged before the Madras High Court. The Madras High Court permitted the Department to make ad-hoc promotions subject to finalisation of the seniority list. According to the applicants, the department is not at all prevented from promoting Officers either on ad-hoc basis or on regular basis as per the two lists dated 16th December, 2004 which is final for the purpose of regular ::: Downloaded on - 09/06/2013 14:46:51 ::: -10- promotions and the final seniority list dated 16th December, 2004 and the draft list dated 28th April, 2005 for the purpose of ad-hoc promotions. So far as the draft seniority list published on 28th April, 2005 is concerned, the same has been challenged by the promotee officers before the Principal Bench of the Tribunal at New Delhi. The said list was quashed by the Principal Bench of the Tribunal on 21st August, 2007. Upon challenge being made, the Delhi High Court in Writ Petition No. 6515 of 2007 has suspended the operation of the order of the Principal Bench at New Delhi vide order dated 5th September, 2007.
8. As pointed out earlier, the challenge before the Mumbai Bench of the Tribunal by six direct recruit Appraisers was to the letter dated 3rd June, 2008, whereby the Chief Commissioners of Customs, Mumbai, Calcutta and Chennai were asked to draw up seniority list of officers in the grade of Customs Appraiser. It is stated in the said letter that while drawing up the seniority list, they were asked to follow the principles determined by various Courts of law.
Reference has been made in the said letter about the Supreme Court judgement which was in connection with the appeal filed by the promotees against the judgment of the Madras High Court. The communication in the form of the said letter was challenged by the direct recruits on the ground that it may result into complication as there is already a final seniority list dated 16th December, 2004 and another draft seniority list published on 28th April, 2005. The Mumbai Bench of the Tribunal vide its order dated 10th July, 2008 while issuing notice ::: Downloaded on - 09/06/2013 14:46:51 ::: -11- to the respondents, stayed the operation of the letter dated 3rd June, 2008. At the time of granting ad-interim relief, the Tribunal observed that prima facie the letter created confusion and complication and accordingly it was directed that the operation of the said letter may be kept in abeyance for a period of 14 days and the department was permitted to promote the officers to various grades on the basis of the final seniority list dated 16th December, 2004 and in case of administrative exigency, if vacancies are available, the respondents may resort to ad-hoc promotions on the basis of the draft seniority list published on 28th April, 2005. However, it is clearly mentioned that all such promotions will be subject to the final outcome of the original application.
9. Against the aforesaid order of the Mumbai Bench of the Tribunal, three writ petitions were filed. This Court on 15th December, 2008, disposed of the three writ petitions. The order reads thus:
"Vide letter dated 3rd June, 2008, Ministry of Finance, Government of India, issued certain di9rections with regard to drawl of seniority list of officers in the grade of Customs Appraiser. Operation of this letter came to be stayed by an ex parte order passed by the Central Administrative Tribunal, Bombay Bench, Mumbai. Certain other directions were passed by the Central Administrative Tribunal after hearing the parties vide its order dated 11 th September, 2008. Exception is taken by the Petitioners to these two orders. Various contentions have been raised in regard to various facets of fixation of seniority as well as of posting, etc. We do not propose to go into the merit or otherwise of the contentions raised before us keeping in view the course of action that we propose to adopt and issue directions in ::: Downloaded on - 09/06/2013 14:46:51 ::: -12- relation to these cases.
2. There is no doubt that certain difficulties are bound to result from the orders passed by the Central Administrative Tribunal as well as the letter dated 3rd June, 2008 issued by the Government of India. It is not in dispute before us that the application as well as the main original application No. 360 of 2008 is listed for final hearing before the Tribunal on 9th January, 2009. It will be appropriate to issue a direction at this stage that the matter may be heard finally by the Tribunal on that day and we do hope, keeping in view the concern shown by the learned counsel appearing for the parties and without commenting in any manner upon as to who is responsible for delaying the proceedings, that the matter is heard on that date and decided expeditiously. For any reason whatsoever if the Tribunal is not able to hear the matter finally and close it for orders, we would definitely expect that the Tribunal would hear the application finally and pass interim orders relating to the ex-parte order passed on 10th July, 2008 as well as the directions contained in the order dated 11th September, 2008. We make it clear that none of the parties would be entitled to pray for adjournment before the Central Administrative Tribunal on that date. We would expect neither of the parties to these Petitions to precipitate the issues till that date.
3. Writ Petitions disposed of accordingly. No order as to costs"
10. Pursuant to the aforesaid order, the Mumbai Bench of the Tribunal disposed of the miscellaneous petition on 13th January, 2009, and directed the respondents to grant posting to those Superintendents in the grade of Assistant Commissioner within a period of one month. The Tribunal also directed the respondents to consider and promote the eligible officers from the cadre of Appraisers within a period of three weeks.
::: Downloaded on - 09/06/2013 14:46:51 ::: -13-11. The aforesaid order of the Tribunal was again challenged in Writ Petition No. 463 of 2009. This Court on 28th January, 2009, partly stayed the said interim order so far as it concerned making promotions from the grade of Customs Appraisers. This Court directed the Tribunal to hear the matter finally and deal with it expeditiously.
12. The Tribunal thereafter passed the impugned order dated 1st May, 2009. The Tribunal held that the exercise sought to be done under letter dated 3rd June, 2008 is superfluous and premature in the absence of final disposal of the writ petitions pending before the Bombay High Court and Delhi High Court.
The Tribunal further held that the two seniority lists shall hold the field and to operate pending final decision in Writ Petition No. 4855 of 2005 pending before the Bombay High Court and Writ Petition Nos. 6515 of 2007 and others pending before the Delhi High Court. The Tribunal further held that all promotions be granted on regular or ad-hoc basis as per the final seniority lists dated 16th December, 2004 and draft seniority list dated 28 th April, 2005 subject to the decisions on the pending writ petitions before the Bombay and Delhi High Courts. It is further held that if any administrative exigencies require, because of the vacancies available, the draft seniority list may be extended on the existing principles. A concern has been expressed by the Tribunal that the officers belonging to the Appraiser cadre who are both applicants and respondents before the Tribunal were left out in spite of specific ruling of the ::: Downloaded on - 09/06/2013 14:46:52 ::: -14- Supreme Court of India in the case of All India Federation of Central Excise and should, therefore, be promoted on ad-hoc basis forthwith. It was also brought to the notice of the Tribunal that the process of consideration for promotions for this group of officers had already been completed. The Tribunal further directed that the actual promotion orders which have not been issued in respect of Appraisers, despite consideration should be expeditiously issued, in any case within two weeks from the date of receipt of the said order.
13. The instant petitions are directed against the aforesaid order of the Tribunal by the promotees as well as by the Union of India.
14. Mr. Cama, learned senior counsel appearing for the petitioners in Writ Petition (Lodging) No. 1006 of 2009 (promotees), vehemently submitted that the order of the Tribunal is unsustainable as the Tribunal has entertained the application only at the stage where the Union of India sought for certain information from various Departments from Mumbai, Chennai and Calcutta. It is submitted that the Tribunal could not have entertained the application and halted the subsequent -process of finalising the seniority list. He submitted that it is not his argument that till the list is finalised, no promotion should be given on ad-hoc basis. However, according to him, whether promotions should be effected or not should be left to the Department and Tribunal cannot issue directions that the Department must promote a particular officer. It is ::: Downloaded on - 09/06/2013 14:46:52 ::: -15- submitted by Mr. Cama that the Tribunal has virtually bypassed the directions given by the Madras High Court in its judgment which judgment has been upheld by the Supreme Court of India. Mr. Cama further submitted that so far as judgment of the Madras High Court is concerned, it cannot be said that the writ petitions filed by the promotees were dismissed. In view of the directions given by the Madras High Court that the department is now drawing up a fresh seniority list and the Tribunal should not have interfered with the said process at this stage. It was not necessary to give direction that till petitions pending before the Bombay and Delhi High Courts are decided, the impugned communication dated 3rd June, 2008 should not be acted upon. Mr. Cama further submitted that by virtue of the directions given by the Tribunal, the department now cannot finalise the seniority list as per the judgment of the Madras High Court and the process will be further delayed inordinately.
According to Mr. Cama, it is always open for the department to give ad-hoc promotion subject to finalisation of the seniority list and that the Court cannot give direction that the promotion must be given on ad-hoc basis as it is for the Government to consider as to whether the promotional posts are required to be filled in. It is submitted that there is no justification for giving direction that promotion should be given from a seniority list which is not in conformity with the direction given by the Madras High Court in its judgment.
15. Mr. Aney, learned senior counsel appearing for the petitioners in ::: Downloaded on - 09/06/2013 14:46:52 ::: -16- Writ Petition (Lodging) No. 990 of 2009, submitted that the Tribunal could not have given directions that within a particular period a particular officer must be promoted. It is submitted that it is for the department to consider whether any administrative exigency arises for giving promotion. Surely, the Tribunal could not have directed that the promotion must be made in a particular manner and within a particular time. Mr. Aney further submitted that so far as the so-called final seniority list dated 16th December, 2004 is concerned, the direct recruits were given seniority from the date of passing of the examination conducted by the Union Public Service Commission and the Madras High Court has clearly held that the seniority of direct recruits can be counted only from the date of appointment. It is submitted that in view of the observations of the Madras High Court, there is nothing wrong on the part of the department to redraw the said seniority list as both the lists i.e. final seniority list dated 16 th December, 2004 and the draft seniority list dated 28th April, 2005 is not in consonance with the principles laid down by the Madras High Court in its judgment. It is, therefore, submitted that the Tribunal should not have intercepted the said process and should not have directed deferment of the said letter/order till the proceedings before the Bombay and Delhi High Courts are disposed of as, according to him, the said two proceedings have nothing to do with the finalisation of the seniority list which exercise the Union of India is now undertaking. According to Mr. Aney, the application filed before the Mumbai Bench of the Tribunal is nothing but an attempt by the direct recruits to stall the ::: Downloaded on - 09/06/2013 14:46:52 ::: -17- Departments action of implementation of the Judgement of the Madras High Court as upheld by the Supreme Court of India. It is submitted by Mr. Aney that the application filed by the applicants before the Mumbai Bench of the Tribunal is in violation of Section 20 of the Administrative Tribunals Act as effective and proper statutory alternate remedy is available to the entire Appraisers cadre by lodging appropriate objections to the letter dated 3rd June, 2008. It is submitted that the original application was clearly premature and, therefore, the Tribunal has exceeded its jurisdiction in issuing the directions as contained in the impugned order Mr. Aney also submitted that the concerned applicants were not having locus standi to challenge the letter dated 3rd June, 2008 issued by the Union of India as the said letter is only an attempt to prepare a draft seniority list in accordance with law and the decisions of the Madras High Court and the Supreme Court of India. According to Mr. Aney, the applicants before the Tribunal suppressed page two of the letter dated 3 rd June, 2008 which gave details of the schedule fixed by the respondents for calling objections, if any, with regard to preparation of the seniority list. Mr. Aney has invited our attention to the observations made by the Madras High in the operate part of its judgment.
16. The learned counsel appearing for the promotees relied upon the judgments of the Supreme Court in the cases of (i) R.M. Ramual vs. State of Himachal Pradesh and others 1 and (ii) P.U. Joshi and others vs. Accountant 1 (1989) 1 SCC 285 ::: Downloaded on - 09/06/2013 14:46:52 ::: -18- General, Ahmedabad and others1 . In the case of Ramual (supra), the Supreme Court has held that when a seniority list has been made final, it should not be allowed to be challenged. But when a seniority list is prepared ignoring all just principles and also the rules framed or directions given by appropriate authority, seriously affecting any officer, it is always liable to be examined and set aside by the Court. Merely because a seniority list has been approved by the Central Government, it cannot be laid down as a rule of law and even though it has been illegally prepared in violation of the directions of the Central Government itself to the prejudice of the officer or officers concerned, it cannot be challenged. In the case of P.U. Joshi (supra), the Apex Court has recognized the absolute administrative right of the Government to change, alter or modify service rules if the justice of the matter so required. Further, there is no right in any employee to safeguard benefits available at a particular point of time if the same were otherwise contrary to law.
17. According to the learned counsel appearing for the promotee officers, even if the Madras High Court has not given any direction with regard to seniority list of 2004 and 2005 the Union of India is within its right to correct itself once it finds that the seniority list published by it is contrary to a binding judgment of a High Court and/or of the Supreme Court. According to the learned counsel, the Supreme Court and the Madras High Court have indeed held that seniority of direct recruits must be from the date of appointment.
1 (2003) 2 SCC 632 ::: Downloaded on - 09/06/2013 14:46:52 ::: -19-
18. Mr. Sethna, learned counsel appearing for the petitioners in Writ Petition (Lodging) No. 1133 of 2009 submitted that in view of the judgment of the Madras High Court which is confirmed by the Supreme Court, the Department has decided to prepare a fresh seniority list as per the principles laid down by the Judgments of the Madras High Court and the Supreme Court of India. According to Mr. Sethna, the application filed before the Mumbai Bench of the Tribunal is contrary to the provisions of the Administrative Tribunal 's Act, 1985. Mr. Sethna submitted that the department would prepare another draft seniority list within a period of two weeks and final seniority list can be published in three weeks thereafter. He submitted that since dispute is going on between direct recruits and promotees for a very long time, the department has now decided to prepare a final seniority list on the basis of the directions given by the Madras High Court which is confirmed by the Supreme Court so that there may not be further dispute about inter se seniority between direct recruits and promotees and promotions can be regularised on that basis.
Mr. Sethna further submitted that the promotees as well as direct recruits can file objections in this behalf and after considering the objections, if any, a final seniority list would be prepared in accordance with law. He further submitted that such a final list will be prepared keeping in mind the law laid down by the Madras High Court as well as by the Supreme Court of India. Mr. Sethna submitted that the Tribunal should not have interfered at the interlocutory ::: Downloaded on - 09/06/2013 14:46:52 ::: -20- stage where the final seniority list is yet not prepared and merely certain information was sought for for the purpose of finalising the seniority list and such communication is also of tentative in nature. Mr. Sethna submitted that since the dispute is going on since long and if any ad-hoc promotions are given, the same are likely to be challenged before the Court of law and under these circumstances department may not be interested in now filling the posts on ad-
hoc basis till the final seniority list is published. He further submitted that whatever directions this Court gives in that behalf, department shall abide by the same and act accordingly. Mr. Sethna submitted that since the list is to be finalised within a very short period, the department at present is not contemplating any further ad-hoc promotions at this stage as ultimately on the basis of the final seniority list the further promotions can be given in an appropriate manner on the basis of such list.
19. On behalf of the Union of India it is also pointed out that even though the list issued in the year 2005 contains the seniority of officers only upto 30th June, 1998, the eligible officers from the year 1998 to 2009 are not listed in the said list. It is submitted that the lists of 2004 and 2005 which are in existence may be contrary to the judgment of the Principal Bench of the Tribunal at New Delhi as also the guidelines given by the Madras High Court.
Mr. Sethna submitted that contempt proceedings have been filed in Madras High Court for not implementing the judgment of the Madras High Court.
::: Downloaded on - 09/06/2013 14:46:52 ::: -21-Considering the said aspect, the Union of India is required to finalise the said seniority list without delay as on behalf of the Union of India, a statement was made in the contempt proceedings before the Madras High Court that the seniority list would be finalised within a particular time.
20. Mr. Singh, learned senior counsel appearing for the direct recruits, on the other hand, submitted that so far as the final seniority list dated 16 th December, 2004 is concerned, the same is in connection with the period prior to 1-1-1987 and the same having become final, the said list now cannot be reopened unless an appropriate order is passed setting aside the said final seniority list. Mr. Singh submitted that so far as the final seniority list of 16th December, 2004 is concerned, it has been prepared and finalised as the earlier list was set aside by the Tribunals at Mumbai and Madras. He submitted that the Tribunal has opined that the existing seniority lists are holding the field and can very well be acted upon for making promotions to the higher posts. It is submitted that even otherwise challenge to the final seniority list dated 16 th December, 2004 having been rejected by the Madras Bench of the Tribunal and a writ petition challenging the same has also been dismissed by the Madras High Court and appeal before the Supreme Court has been dismissed, the said list now, therefore, cannot be re-opened by the department as at three stages finality has been attained to the said list. He submitted that the Madras High Court has not said a word in its judgment that the said list is illegal or contrary ::: Downloaded on - 09/06/2013 14:46:52 ::: -22- to law. It is submitted that the Supreme Court has also dismissed the appeal meaning thereby that the challenge to the said list has not been accepted even by the Supreme Court. It is submitted that the Tribunal has clearly opined that the existing seniority lists are holding the field and can very well be acted upon for making promotions to the higher grade. The conclusion arrived at by the Tribunal is based on the fact that none of the judicial fora in the past including Madras High Court has either quashed the impugned lists or gave a categorical direction to draw a fresh list. Mr. Singh further submitted that since the direct recruits are waiting for their turn since long, there is no reason not to fill up the promotional posts which are vacant and the stand of the Union of India of keeping the posts vacant is against the public interest as the revenue will suffer if the posts are not allowed to be filled in.
21. Mr. Singh submitted that his clients were not parties in the contempt proceedings before the Madras High Court and the observations made by the Madras High Court in the contempt proceedings can be said to be only incidental and the rights of the respondents cannot be said to have been wiped off as in contempt proceedings, substantive rights of the parties are never decided. In the affidavit filed on behalf of the Union of India, a copy of which is placed on record, in paragraph 22 it is stated thus:
"22. In the above circumstances the petitioners herein are unable to complete the entire process to finalise seniority list ::: Downloaded on - 09/06/2013 14:46:52 ::: -23- before 15.06.09, the time limit mentioned by this Hon'ble Court vide its order dated 16.03.09. The petitioners herein are seeking further time to finalise the seniority list pursuant to this Hon'ble Court's order dated 21.04.06 made in W.P. No. 39583 of 2005 in view of the developments explained above. The delay in finalizing the seniority list is neither wilful nor wanton but due to various factors as narrated above. In the interest of justice it is just and necessary that this Hon'ble Court may be pleased to extent further reasonable time to finalise the seniority list."
22. According to the learned counsel for the direct recruits, no court has issued any direction to the Government to prepare a new seniority list. What is recorded in para 50 of the judgment of the Madras High Court is merely conclusions based on the case law discussed by it. In any event, according to the learned counsel, the judgment of the Madras High Court has merged with the Supreme Court judgment. Therefore, the order dated 3rd June, 2008 is ex facie illegal and the Mumbai Bench of the Tribunal has correctly deferred the said exercise in its judgment. According to the learned counsel, the seniority list dated 16th December, 2004 is final and cannot now be re-opened. In the entire judgment of the Madras High Court, there is not even a whisper that there is any infirmity in the seniority list. The judgment of the Madras High Court cannot be interpreted on the basis of subsequent orders passed in the contempt petition.
The seniority dispute is pending since long and even if the new list is issued or draft list is finalized, the finality will not be attained and the new list may generate further litigation. The learned counsel finally submitted that since the question, whether the direct recruits can be granted seniority from the date of ::: Downloaded on - 09/06/2013 14:46:52 ::: -24- publication of result need not be decided in these petitions as the said issue is pending before the Delhi High Court and the Principal Bench of the Tribunal at Delhi. There is no need to draw a fresh draft seniority list as all challenges to the existing draft list dated 28th April, 2005 are expressly rejected and no Court has either struck it down or has issued direction for preparation of fresh draft list in respect of Appraisers appointed/promoted after 1st January, 1988. It is submitted that no court has found any infirmity in the principles on the basis of which the draft list of 28th April, 2005 is drawn and, therefore, the said list is required to be finalized by following the very same principles.
23. Mr. Jethmalani, Senior counsel appearing for the direct recruits, submitted that the attempt on the part of the revenue to revise the said list which has become final is not just and proper. He submitted that the challenge to the seniority list has been rejected by the Tribunal at Madras and it is not open for the department to make an attempt now to redraw the list again as the said list cannot be cancelled or set aside in any manner. Mr. Jethmalani submitted that the cadre of Appraisers to which the petitioners and private respondents belong, is left out while effecting promotions to the post of Assistant Commissioner despite specific ruling of the Supreme Court in the case of All India Federation of Central Excise. It is submitted that in view of that the Tribunal in the impugned order has directed that the posts of Appraisers be filled on ad-hoc basis forthwith. According to Mr. Jethmalani, the order of the ::: Downloaded on - 09/06/2013 14:46:52 ::: -25- Tribunal is just and fair. It is submitted by Mr. Jethmalani that after the judgment of the Madras High Court, for a considerable time no attempt was made by the Union of India to draw up a fresh seniority list and even ad-hoc promotions were also given in between. The Tribunal has considered the judgment of the Madras High Court and has come to the conclusion that the challenge to seniority lists was rejected by the Madras High Court without any direction for revision of the lists. It is submitted that as per the judgment of the Supreme Court in the case of All India Federation of Central Excise vs. Union of India1, each bunch of 9 vacancies in the promotion quota for Group B Feeder cadres will be apportioned in the ratio of 6:1:2 consisting Central Excise Superintendents, Customs (P) Superintendents and Customs Appraisers respectively and further vacancies to be filled up on the basis of a 'cycle' in the above order. It is submitted that the department has already effected the promotions from amongst Excise Superintendents and Custom Superintendents in the ratio of 6 : 1 , excluding the Appraisers and breaking the cycle. It is submitted that there is nothing wrong if the promotions are effected on ad-hoc basis.
24. We have heard the learned counsel appearing for the parties at great length. We have also gone through the impugned judgment of the Mumbai Bench of the Tribunal, order passed by the Madras Bench of the Tribunal as well as the judgments of the Madras High Court and the Supreme Court of India. We 1 (1997) 1 SCC 520 ::: Downloaded on - 09/06/2013 14:46:52 ::: -26- have also gone through the written submissions of the parties.
25. In order to find out whether it was open to the Department to redraw the list in view of the observations made by the Madras High Court which is confirmed by the Supreme Court or whether the department now is prevented from redrawing the list or preparing a fresh list as a whole is the question which is required to be considered in the above petitions.
25A.
In this connection, it is required to be noted that before the Tribunal at Madras, the main prayer was to the effect that no promotion should be effected on the basis of the draft seniority list and promotion, if any, should be done on the basis of seniority list dated 12th November, 1997. The Tribunal disposed of the applications by its order dated 9th August, 2005 by observing that the Tribunal at Madras is bound by the decision of the Bombay Bench of the Tribunal and since the matter was pending in this Court, the promotees have to pursue their remedy either in this Court or await the final outcome of the litigation. The promotees being aggrieved by the said order preferred three writ petitions before the Madras High Court being Writ Petition Nos. 39564, 39583 and 26975 of 2005. The Madras High Court after considering the decision of the Supreme Court in the case of Gaya Baksh Yadav vs. Union of India 1 and after considering the facts and circumstances of the case observed as under in paras 49 and 50.
1 (1996) 4 S CC 23 ::: Downloaded on - 09/06/2013 14:46:52 ::: -27- " 49. In the present case, it cannot be said that the quota had broken down. On the other hand, the Supreme Court in Gaya Baksh Yadav's case categorically observed that at least 50% is preserved for the direct recruits at all times. So far as ad-hoc promotion before December, 1987 is concerned, to the extent that such appointment had been made within the maximum 50% available for the promotees, the observation of the Supreme Court in Gaya Baksh Yada's case i.e. Seniority should be counted from the date of continuous officiation, is required to be followed. However, it cannot be said that the Supreme Court also intended to lay down an inexorable principle that the promotees promoted on ad hoc basis before December, 1987 in excess of maximum 50% available to the promotees, on their subsequent regularisation after 1988 Rules came into force, were also to be given seniority from the date of their ad hoc promotion. Such interpretation would rather militate against the observation of the Supreme Court that the direct recruits are ensured 50% of the posts at all times.
50. In view of the discussion, the inevitable conclusion is as follows:- A. Promotees who had been regularised by December, 1987 should be in the seniority list on the basis of continuous officiation.
B. Ad hoc promotees within permissible 50% , who were regularised after 1988 Rules came into force can claim seniority from the date of their ad-hoc promotion, provided their selection was otherwise in accordance with the 1961 Rules. However, ad hoc promotees promoted before December, 1987 in excess of maximum permissible 50% of the post, on their subsequent regularisation after 1988 Rules came into force can claim seniority from the date of regular promotion and not from the date of their ad hoc promotion.
C. The seniority of a direct recruit can be counted from the date of appointment.
D. There is nothing in 1988 Rules to indicate that seniority has to be fixed on the basis of principle of rotation.
Therefore, to the extent, a particular appointment is within the quota earmarked in 1988 Rules seniority has to be ::: Downloaded on - 09/06/2013 14:46:52 ::: -28- counted from the date of the substantive appointment and if there has been any appointment in excess of the quota for a particular year, for a particular category, obviously such a person must be pushed down and should be adjusted against the quota of the category concerned during the subsequent years.
E. Seniority need not be on the basis of rotation unless there is any specific instruction to that effect validly issued after coming into force of 1988 Rules and the Department cannot fall back on the instructions which had been issued befor3 1961 or befor3e 1987 as it cannot be said that such instructions are in vogue even after new Rules have come into force".
26. The said decision was further challenged by the promotees before the Supreme Court(Chennai Customs Appraising Officers Association vs. Union of India and others 1. The Supreme Court while reiterating the principles laid down by the Supreme Court in Gaya Baksh's case (supra) has held as under:-
" 40. Therefore, promotions may have to be continued whether on and ad hoc basis or otherwise so as to enable the department to function effectively and efficiently. The promotees may continue in their service but when a question arises in regard to determination of seniority, the statutory rules must be given effect to.
41. In Gaya Baksh Yadav this Court opined: (SCC p.33 para
16) " 16. ...Both would be entitled to placement in the joint seniority list on the basis of their continuous officiation."
This is subject to Rule 4 (a) of the 1961 Rules.
1 (2008) 7 SCC 278 ::: Downloaded on - 09/06/2013 14:46:52 ::: -29-
42. In Gonal Bihimappa vs. State of Karnataka 2 this Court held: (SCC p. 224 para 19).
"19.....In the present batch of cases the law being clear and particularly the mandate in the rule being that when recruitment takes place the promotee has to make room for the direct recruit, every promotee in such a situation would not be entitled to claim any further benefit than the advantage of being in a promotional post not due to him but yet filled by him in the absence of a direct recruit."
43. We, therefore, do not find any apparent illegality in the judgment of the High Court. As we have interpreted the 1961 Rules on the touchstone of the decision of the High Court in Gaya Baksh Yadav, we do not think it necessary to deal with the individual submissions of the learned counsel for the parties.
44. We may, however, observe that we have not gone into the merit of the matter which is pending before the Bombay High Court."
27. Thereafter a contempt petition was filed before the Madras High Court for disobeying the order passed by the Madras High Court on 21 st April, 2006. The Madras High Court relying upon the case of Kapildeo Prasad Sah vs. State of Bihar 2 held that power to punish for contempt is necessary for maintenance of the effective legal system and is exercised to prevent perversion in the course of justice. It would be relevant to refer to the observations of the Madras High Court in the said contempt petition which read thus:
" 9. In the instant case, admittedly, the direction contained in paragraph 50 (A) and 50 (B) of the order in W.P. 39583 of 2 1987 Supp SCC 207 2 1999 (7) SCC 569 ::: Downloaded on - 09/06/2013 14:46:52 ::: -30- 2005 about fixation of seniority of the petitioner has not been carried out. In our view, from a perusal of paragraph 50 (A) of the said order, it is clear that the petitioner is a promotee who had been regularised by December, 1987 should be in the seniority list on the basis of his continuous officiation. In the contempt petition it has been stated by the petitioner in paragraph 6 that he was promoted as an appraiser on 7.3.1983 and was regularised with effect from 1.4.1987 and, as an appraiser,w as within 50 per cent quota meant for promotees.
These facts are not disputed by the respondents. Nor is it disputed that the petitioner being promoted as an appraiser on 7.3.1983 has been regularly officiating in the said post.
10. Learned counsel for the alleged contemnor submitted that the petitioner's appointment has been made beyond 50 per cent quota meant for promotees. This is a question of fact, but there is no such averment in the counter-affidavit which has been filed in this case, by the alleged contemnor and the petitioner's assertion to the contrary has not been denied at all.
11. That being the position, this Court holds that fixation of seniority shown in the order dated 15.10.2008 in so far as the petitioner is concerned, is not correct. The seniority of the petitioner must be counted with effect from his officiating appointment on 7.3.1983 in terms of the judgment of the Division Bench referred to above which has been upheld by the Hon'ble the Supreme Court referred to above. The respondents are therefore directed to refix the petitioner's seniority on the aforesaid basis within a period of two weeks from today. Contempt petition is thus disposed of.
Miscellaneous petition is closed. "
28. In another contempt petition being Contempt Petition No. 48 of 2009 filed before the Madras High Court, the Court recorded the submission of the learned Additional Central Government Standing Counsel to the effect that the matter has to be placed before the Cabinet Minister and in view of the impending general elections, the counsel sought some more time for finalisation of the said exercise. The Madras High Court accepted the said submission and granted time ::: Downloaded on - 09/06/2013 14:46:52 ::: -31- upto 15th June, 2009 by which time the seniority has to be finalised and the seniority list released. The contempt petition thus stands closed on 16th March, 2009.
29. It is no doubt true that there is no direction in the judgment of the Madras High Court that the seniority list of 2004 is quashed and set aside. It cannot be disputed that the Madras High Court has not dismissed the writ petitions filed by the promotees challenging the said lists. The writ petitions filed by the promotees before the Madras High Court in connection with challenge to the seniority list dated 16th December, 2004 are concerned, the same were numbered as W.P. Nos. 39564 of 2005 and 39583 of 2005, and the Madras High Court has disposed of the said writ petitions subject to the observations made in the said order. It may be relevant to quote the observations of the Madras High Court and the same read thus:
"52. In view of the aforesaid conclusions, the prayer made in various writ petitions are to be specifically considered.
Prayer in W.P. No. 26975 of 2005 is for issuing a writ of certiorarified mandamus for quashing the order dated 9.8.2005 and further directing the respondents 2 to 4,namely, Union of India and other officials, to finalise the seniority list in the light of objections made by the Petitioner before making promotion to the post of Assistant Commissioner of Customs and Central Excise (Group A) Post.
Similarly, in W.P. Nos. 39564 of 2005 and 39583 of 2005, prayer has been made for quashing the common order dated 9.8.2005 passed by the Tribunal and for ::: Downloaded on - 09/06/2013 14:46:52 ::: -32- quashing the seniority list dated 16.12.2004.
53. The Tribunal has observed that the concerned promotees have to await the decision of the Bombay High Court or get themselves impleaded there to pursue their remedy. The stand of the Union of India is that seniority list is being finalised but the Union of India is keen to promote persons on the basis of draft seniority list which would be subject to the finalisation of the seniority list.
The main contention of the promotees is that on the basis of continuous officiation from the date of ad hoc promotion they should be considered as seniors to the direct recruits who have been appointed subsequently.
54. This contention is not acceptable in view of the analysis of position of law made earlier to the extent, any promotee who had been promoted before December, 1987 within the maximum 50% available for the promotees, his seniority can be counted from the date of continuous officiation, whereas, a promotee promoted on ad hoc basis before December, 1987 in excess of 50% and regularised against a regular vacancy after 1988 Rules came into force, cannot claim seniority. In view of the specific stand of the Union of India that it is only contemplating to give ad hoc promotion on the basis of the draft seniority list, the promotees cannot be said to be aggrieved as the question of regular promotion would obviously depend upon subsequent finalisation of the seniority list. While giving any such promotion, the Union of India should make it clear that the promotion is ad hoc subject to finalisation of the seniority list.
55. Subject to these observations, W.P. Nos. 26975, 39564 and 39583 of 2005 are disposed of."
30. Considering the observations of the Madras High Court, in our view, therefore, there is nothing wrong in the decision of the department to redraw the seniority list in view of the fact that the list is required to be prepared keeping in mind the directions/observations of the Madras High Court in its ::: Downloaded on - 09/06/2013 14:46:52 ::: -33- judgment. The Madras High Court, though has not specifically set aside the seniority list, but has at the same time asked the Department to prepare a seniority list by keeping in mind the observations made in the order and has disposed of the writ petitions accordingly. If the department now wants to redraw the said list on the basis of the principle enunciated in the judgment of the Madras High Court and the Supreme Court, no fault can be found with the action of the department in preparing such a seniority list. All throughout the promotions have been effected on ad-hoc basis and it is desirable that once and for all an appropriate seniority list be prepared adhering to the said principles.
In our view, on preparation of such a list, if there is any grievance between direct recruits or promotees, it is always open for the aggrieved persons to challenge the said final list on the available points.
31. We are not impressed by the argument of Mr. Singh, the learned senior counsel, that the Supreme Court has observed in its order that the writ petitions were dismissed by the Madras High Court. It is not in dispute that the writ petitions were as such disposed by the Madras High Court on the basis of certain directions/observations (supra) contained in its order.
32. In view of the above, we direct that in case the department is of the opinion that during the process of finalisation of the seniority list, if any promotions are required to be effected for administrative exigencies, the same ::: Downloaded on - 09/06/2013 14:46:52 ::: -34- can be effected from the final seniority list dated 16th December, 2004 and the draft list dated 28th April, 2005, which are in operation since long. It is submitted by Mr. Cama and Mr. Aney that if the department is not interested in filling up of the posts, Tribunal should not have given directions in this behalf.
However, in our view, if the Department, on account of administrative exigencies, wants to make promotions on ad-hoc basis, it can certainly make ad-
hoc promotions if it so desires. However, we make it clear that our observations should not be treated as if we are directing the Department to effect ad-hoc promotions as this question is left to the discretion of the Department and they can take such decision on the basis of administrative exigencies. We record the submission of Mr. Sethna that within two weeks, objections to the draft seniority list, if any, shall be invited and thereafter within one week the same will be finalised. We, however, clarify that we have not gone into the merits of the matter in so far as inter se seniority between direct recruits and promotees is concerned, and our observations, as above, may be treated as tentative in nature. Rule in each petitions is accordingly made absolute to the aforesaid extent. No order as to costs.
P.B. MAJMUDAR, J.
R.M. SAVANT, J.
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